This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP2602

Cir. Ct. No.2012TR338

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT IV

In the matter of the refusal of George R. Ferrell:

State of Wisconsin,

Plaintiff-Respondent,

v.

George R. Ferrell,

Defendant-Appellant.

APPEAL
from an order of the circuit court for Sauk County:patrick
J. taggart, Judge.Affirmed.

¶1KLOPPENBURG, J.[1] George
Ferrell appeals an order finding that the arresting officer had probable cause
to arrest Ferrell for operating while intoxicated, and upholding the one-year
revocation of his operating privileges.Ferrell
argues that the arresting officer lacked probable cause to arrest him for
operating while intoxicated.This court
concludes that the arresting officer had probable cause to arrest Ferrell and
therefore affirms.

BACKGROUND

¶2The relevant facts are not in dispute.At approximately 1:37 p.m. on January 13,
2012, the Wisconsin State Patrol received a number of calls about a vehicle
traveling on the interstate in Dane County. One caller reported that the vehicle was
stopped on the shoulder of the interstate, and that a man was standing outside
of the vehicle and threatening a woman inside of the vehicle.Other callers reported that the vehicle was
speeding, aggressively changing lanes, and passing on the left shoulder.

¶3State Trooper Scott Thiede was patrolling the interstate in
Sauk County when the vehicle described by the callers passed him. The vehicle was traveling at 82 miles per hour
and swerving within its lane.The
vehicle caught up to slower traffic, made a sharp lane change, and started
following closely behind a semi-truck.While the vehicle was traveling behind the semi, it drifted to the
center line and then to the fog line before making a jerky correction back to
the center of the lane.

¶4Thiede activated his lights and siren in order to stop the
vehicle.The vehicle did not immediately
pull over.Instead, the vehicle
continued to an exit and stopped halfway down the exit ramp.

¶5Thiede approached the vehicle on the passenger side.He identified the driver as George Ferrell. Thiede asked Ferrell for his driver’s license.
Ferrell had trouble finding his license.Thiede observed that Ferrell was very rigid.Thiede also observed that Ferrell’s eyes were
bloodshot and his pupils were unusually constricted, and his speech was
slightly slurred.Thiede did not smell
alcohol on Ferrell’s or the passenger’s breath, and he did not see intoxicants
in the vehicle.

¶6At this point, Thiede requested backup because he suspected that
Ferrell was intoxicated.Once a second
squad car arrived, Thiede asked Ferrell to step out of the vehicle. Ferrell exited the vehicle and walked towards
the back of the vehicle with his arm extended in front of him “like a
mummy.”Thiede asked Ferrell to perform
field sobriety tests, and Ferrell refused.Thiede then arrested Ferrell for operating while intoxicated.Ferrell additionally refused to submit to a
breath test following his arrest.

¶7Thiede immediately prepared a Notice of Intent to Revoke
Operating Privilege under Wis. Stat. § 343.305(9),
which states: “If a person refuses to take
a [breath] test under sub. (3) (a), the law enforcement officer shall
immediately prepare a notice of intent to revoke … the person’s operating
privilege.”Ferrell requested a hearing
on the revocation under § 343.305(9)(a)4., which allows a person whose
operating privileges have been revoked under § 343.305(9)(a) to request a
hearing on the revocation within ten days.

¶8The Sauk County Circuit Court held a hearing on the
revocation.The sole issue at the
hearing was whether Thiede had probable cause to arrest Ferrell for operating
while intoxicated.Ferrell argued that
Thiede did not have probable cause to arrest him for operating while intoxicated,
and that his refusal to submit to a breath test was therefore reasonable.

¶9The circuit court concluded that Thiede had probable cause to
arrest Ferrell.In reaching this
conclusion, the circuit court relied on the following factors: Thiede’s testimony at the hearing and his twenty-two
years of experience as a law enforcement officer; Ferrell’s “erratic and
dangerous driving behavior”; Ferrell’s “dismissive behavior when asked about
his speed”; Ferrell’s bloodshot eyes, constricted pupils, slurred speech, and
rigid and aggressive posture; Ferrell’s difficulty locating his driver’s
license; and Ferrell’s refusal to perform field sobriety tests.Based on these factors, the circuit court
found that, under the totality of the circumstances, Thiede had probable cause
to believe that Ferrell was operating while intoxicated.As a result, the circuit court ruled that
Ferrell’s refusal to submit to the breath test was unreasonable, and upheld the
one-year revocation of Ferrell’s operating privileges.Ferrell now appeals.

DISCUSSION

¶10Ferrell argues that the circuit court erred in determining that
the totality of the circumstances established probable cause to arrest him because
Ferrell did not admit to drinking, Thiede did not smell alcohol on Ferrell’s
breath, and Thiede did not observe evidence of alcohol consumption in Ferrell’s
car.Ferrell contends that his refusal
to submit to field sobriety tests was reasonable because Thiede did not have
probable cause to arrest him. As
explained below, Ferrell’s arguments lack merit.

¶11Whether undisputed facts establish probable cause is a question
of law that this court reviews without deference to the trial court.State v. Kasian, 207 Wis. 2d
611, 621, 558 N.W.2d 687 (Ct. App. 1996).Probable cause to arrest for operating while intoxicated exists when the
“quantum of evidence within the arresting officer’s knowledge at the time of
the arrest … would lead a reasonable law enforcement officer to believe that
the defendant was operating a motor vehicle while under the influence of an
intoxicant.” State v. Lange, 2009 WI
49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551.The court applies an objective standard, and considers “the information
available to the officer and the officer’s training and experience.”Id., ¶20.

¶12Turning to the facts of this case, the State Patrol received
several reports that Ferrell was driving erratically and dangerously.Thiede observed that Ferrell was speeding and
watched Ferrell swerve within his lane.When Thiede activated his lights and siren, Ferrell did not immediately
react; instead, he continued to an exit and stopped halfway down the exit ramp.Thiede also observed physical signs that
caused him to believe that Ferrell was intoxicated.Ferrell’s eyes were bloodshot and his pupils
were unusually constricted, and his speech was slightly slurred.All of these facts taken together would lead
a reasonable officer to believe that Ferrell was driving while under the
influence of an intoxicant.Further
evidence of use of intoxicants, such as odors, admissions, and containers, is
not required.Id., ¶37.

¶13In addition, Ferrell refused to submit to field sobriety
tests.This court has previously
acknowledged that a refusal to perform field sobriety tests is indicative of
consciousness of guilt.State
v. Babbitt, 188 Wis. 2d 349, 359-60, 525 N.W.2d 102 (Ct. App. 1994)
(“The most plausible reason for a defendant to refuse such a test is the fear
that taking the test will expose the defendant’s guilt.Thus … this evidence should be admissible for
the purpose of establishing probable cause to arrest.”).

¶14Based on all of the facts stated above, the totality of the
circumstances would lead a reasonable police officer to conclude that Ferrell
was probably operating his vehicle while intoxicated, and Thiede therefore had
probable cause to arrest Ferrell.

CONCLUSION

¶15For the reasons set forth above, this court affirms the circuit
court’s finding that Thiede had probable cause to arrest Ferrell for operating
while intoxicated and that Ferrell’s refusal to submit to a breath test was
unreasonable.

By the Court.—Order affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)4.

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2)(c) (2011-12).All references to the Wisconsin Statutes are to the 2011-12 version
unless otherwise noted.